IRELAND Law and Practice Contributed by: Philip Tully, Emma Doherty, Geraldine Carr, Simon Shinkwin and Carlo Salizzo, Matheson LLP
company/business to come forward to report certain competition offences. 6.4 Abuse of Dominant Position Abuse of a dominant position is prohibited by Section 5 of the Act and Article 102 of the TFEU. Section 5 of the Act mirrors Article 102 of the TFEU, except that it refers to the abuse of a dominant position in trade for any goods or ser - vices in Ireland or any part of Ireland. While the Act refers to trade in goods and services in the state, its provisions are also likely to apply to international businesses/trade that are/is found to be dominant and where there is an effect on trade in Ireland. Definition of Dominance There is no definition of dominance within the Act. The Irish courts and the CCPC have adopt - ed the definition formulated by the CJEU in case 27/76, United Brands v Commission [1978] ECR 207: “[a] position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers”. Section 5 (2)(a) to (d) of the Act also sets out several examples of what constitutes abuse of dominance. These are: • directly or indirectly imposing unfair purchase or selling prices or other unfair trading condi - tions; • limiting production, markets or technical development to the prejudice of consumers; • applying dissimilar conditions to equiva - lent transactions with other trading parties, thereby placing them at a competitive disad - vantage; and
• making the conclusion of contracts subject to the acceptance by other parties of supple - mentary obligations that according to com - mercial usage have no connection with the subject of such contracts. Remedies As in the case of cartels, the Act makes abuse of a dominant position a criminal offence that can be prosecuted before the Irish courts and is punishable by financial penalties. The Act also includes specific provisions for aggrieved persons and the CCPC to take civil proceed - ings before the Irish courts seeking remedies for abuse of a dominant position. The remedies available in civil proceedings include a court declaration, damages, imposing structural measures and an injunction. 7. Intellectual Property 7.1 Patents Definition Any inventive product/process is patentable under Irish law if it: • is susceptible to industrial application; • is new; and • involves an inventive step. Certain inventions are specifically excluded under Irish law, including a discovery or scien - tific theory, computer programs and methods of doing business. Length of Protection Patent protection lasts for up to 20 years from the date of the application, subject to the pay - ment of renewal fees. Irish law also provides for the extension of full-term patents for pharma -
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